WA Bankruptcy and a Property Seizure and Sale Order?

Discussion in 'Debt and Bankruptcy Law Forum' started by Arrow72, 21 February 2019.

  1. Arrow72

    Arrow72 Member

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    Hello,

    I have a tricky situation. Recently I was terminated from my employment. Not long after this, my wife became ill and the debts kept growing. Add to this, I had my only car seized by the sheriff's office. I was in the middle of becoming bankrupt due to the overwhelming debt. The debt that was the reason that my car was taken under a PSSO, was also covered under the bankruptcy. Now I owned this car outright with no money against it.

    The creditor who got a judgement debt against me, without my knowledge, had my vehicle taken to try recover funds, I had six days to come up with the funds. I couldn’t do that and instead filed for bankruptcy, even last week the agent said f I paid the debt I would get my car back. As I understand I once I filed for bankruptcy, the car should have been handed back. The agent is holding onto it as they also registered a security interest over the car and not my personal belongings hey also took. They did this without notifying me and also said that it was a court order for the reason for the security.

    I have spoken with the courts and they have said they can’t put in such an order to place security over the car. The creditor has also extended the PSSO to try recover funds although he is aware I am bankrupt. I have spoken with legal aid and they say it is too big for them. I have done countless hours of research and cannot get thru to anyone. Anyone have any opinions?

    Thanks
     
  2. kevin586

    kevin586 Well-Known Member

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    You have left this very late.

    They cannot take what you rely on to earn a living and nor can they take the basics of living.

    Contact the court and ask about you get the decision of the court grant execution to the creditor, set aside. Tell the court you require 6 weeks to obtain legal advice, (don't say it might be from the bloke next door) consider that advice and develop and prepare a response.

    At the same time file an application to recover the car from the sheriff on the basis that the sheriff may have acted on false information from the collector. (Sounds to me the collector was bluffing and lying to you) Explain to the court that the collector appears to have lied in what they said and that their action may be illegal. Tell the court you need time to get legal advice and work out where you stand and develop an action plan.

    If the collector has lied then lodge a complaint with collectors regulatory authority who I think is the ACCC. Collectors can have their licence cancelled or suspended for lying to debtors.

    Go the ACCC website and download the PDF document "Guideline for Creditors and Collectors.
    If the collector is a debt buyer then not one single cent of what they get off you will go back to the original creditor. it will all go into their own back pocket.

    If they are an agent of the creditor then don't worry, too much these people can't really touch you, they can only threaten and cajole you.

    I fear this is all a bit late but do the best you can with the information I've supplied.
     
  3. Arrow72

    Arrow72 Member

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    I found this document written by a Solicitor over here, this is part of what I took out of it.
    4.9.1 Bailiff's Power Of Seizure

    As noted in paragraph 4 above, once a creditor has obtained a judgment against a debtor, the creditor can proceed straight to the use of a property (seizure and sale) order (psso) without any intermediate steps such as a means inquiry. A bailiff with a psso can seize property immediately. In practice, a bailiff normally attends the debtor’s premises, and requests payment of the required amount. If the debtor cannot pay the amount required, the bailiff can effect a notional seizure of the client’s property straight away.

    Effecting a notional seizure is described as attachment of the property concerned. Section 150 of the Criminal Code makes it an offence punishable by imprisonment to hinder or defea.t attachment by receiving, removing, retaining, concealing or disposing of property which has been attached. Accordingly, if a client is the subject of a psso it is important to ensure the client knows to leave property that has been notionally seized where it is.

    As noted in the paragraph Interpleader below, if a person other than the debtor owns or has an interest in the seized property that person can make a claim to the Sheriff. If a debtor who is the subject of a property (seizure and sale) order becomes bankrupt, action by a bailiff against the debtor relating to any debt provable in the bankruptcy is halted by subsection 58 (3) of the Bankruptcy Act (Commonwealth).

    This overrides the provisions of the (State) Civil Judgments Enforcement Act, due to section 109 of the Australian Constitution. Add to this that Baycorp put security over my vehicle and stated the reason being a court order which I have now found out it wasn’t actually a court order at all. I have presented this to them and they will not return my emails or calls. Found a good solicitor who has had a look and said that I am correct and the will act on my behalf. Unfortunately, I don’t want to get to that point but have that option now.

    Thanks
     
  4. Arrow72

    Arrow72 Member

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    Just an update, I managed to win and got my car back. I was against it from the start but that document I got the paragraphs above from was the deal breaker and my constant persistence. Just don’t let up on a lot of these debt collectors, they run right to the edge of the law and if you don’t back down they will eventually break.
     
  5. 6pac

    6pac Member

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    Can I contact you about this please?
     
  6. Arrow72

    Arrow72 Member

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    Yes you can, I am away at work ATM, but if you send me your number I can try help you where I can. My email address is [email protected]
     
    6pac likes this.
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